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2002 DIGILAW 14 (CAL)

Kamala Kanta Das v. Madan Mohan Das

2002-01-16

Narayan Chandra Sil

body2002
JUDGMENT N. C. Sil, J.: This appeal has been directed against the judgment of confirmation passed on 31.8.1995 by Sri S. K. Chaudhury, the 9th Court of the Assistant District Judge, Alipore in connection with Title Appeal No. 73 of 1995 arising out of the judgment and decree dated 21.12.1994 and 25.1.1995 respectively passed by Sri Jayanta Chakraborty, the learned Munsif, 3rd Addl. Court at Alipore in connection with Title Suit No. 309 of 1986. The learned Munsif was pleased to dismiss the suit with costs which was affirmed by the First Appellate Court. 2. The suit was for ejectment of the tenant on the grounds of (1) personal requirement (2) building and rebuilding (3) addition and alteration made by the defendant/tenant without the permission of the landlord and (4) sub-letting. 3. The substantial question of law formulated for disposal of this appeal is as follow:- "Whether the findings of the courts below on the question of constructive res judicata is sustainable in law." In course of arguments made by the learned Advocates for both the parties the concentration was made on the observations made by both the courts below as regards the sub-letting. And this will prompt us to confine our findings mainly on that score of sub-letting. 4. Mr. Shanti Bhusan Mukherjee, the learned Advocate appearing for the appellant/plaintiff argues that though the learned Munsif found the factum of sub-letting proved , dismissed the suit on the ground of res judicata considering the judgment passed earlier in Title Suit No.411 of 1980. It is pointed out by Mr. Mukherjee that in the said Title Suit No.411 of 1980 no ground of subletting was taken, nor there was any decision on such sub-letting and as such there cannot be any application of res judicata in dismissal of the subsequent suit. It is also pointed out by Mr. Mukherjee that the observations of the trial court as regards res judicata was upheld by the first appellate court considering the judgment passed in Title Suit No.411 of 1980 which was subsequently re-numbered as T.S. 95/84 and the decision subsequently made in Title Appeal No.211 of 1985. Mr. Mukherjee has further pointed out that the said suit was for injunction only and as such there was no occasion for the plaintiff to take any ground of sub-letting in that suit. 5. Mr. Mukherjee has referred to a number of case laws. Mr. Mukherjee has further pointed out that the said suit was for injunction only and as such there was no occasion for the plaintiff to take any ground of sub-letting in that suit. 5. Mr. Mukherjee has referred to a number of case laws. Thus, in the case of Mirta Lina Private Ltd. vs. The Finlay Mills Ltd., AIR 1982 Ca1.41, the Single Bench of this High Court interpreted "matter in issue" appearing in section 11 of the Code of Civil Procedure and was pleased to hold that the matters not in issue cannot be regarded as heard or finally decided so as to operate as res judicata in the later suit. It was held in the case of Howrah Trading Company P. Ltd. & Ors. vs. Smt. Pramila Jalan & Ors., 1994 (2) CLJ 278, that the principle of res judicata will not apply if there are new facts which were not before the Court when the initial order was passed and there was no determination of any issue as such. It was further held in that case that the res judicata will only apply when an issue has been heard and determined. The similar decision was made in the case of Calcutta Municipal Corporation & Ors. vs. Debu Bhattacharjee, 1991 (2) CLJ 1 . 6. Mr. Tapas Midya learned Advocate for the respondent/defendant argues that in a suit being Title Suit No.527 of 1973 between the same parties the grounds of building and rebuilding and the changing the nature and character of the suit property were taken by the plaintiff/landlord, but the suit was dismissed. Mr. Midya has pointed out that although the trial court found the proof of sub-letting the first appellate court after having analysed the evidence on record came to the conclusion that there was no proof of sub-letting and as such the observation of the trial court was not accepted by the first appellate court. 7. Mr. Midya has referred to a number of case laws. 7. Mr. Midya has referred to a number of case laws. Thus, it was held in the case of Ishwardas vs. State of Madhya Pradesh, AIR 1979 SC 551 , that in order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common and all that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. Then the case of State of Uttar Pradesh vs. Nawab Hussain, AIR 1977 SC 1680 , has been referred to. In the said case the petitioner was dismissed from service and he filed a petition for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations made against him and the action taken against him was mala fide. The said petition was dismissed. Thereafter he tiled a suit in which he challenged the order of dismissal on the ground, inter alia, that he had been appointed by the I.G.P. and that Dy. I.G.P. was not competent to dismiss him by virtue of Article 311(1) of Constitution. It was held in that case that the suit was barred by the principle of constructive res judicata. Having relied on that case Mr. Midya argues that though the ground of sub-letting was not taken in the earlier suit the same should have been taken by the plaintiff and as such the principle of constructive res judicata will come into operation. It was held in the case of P.K. Vijayan vs. Kamalakshi Amma, AIR 1994 SC 2145 that the omission made by the party to raise all available pleas that might and ought to have been taken in the earlier proceeding, constitute constructive resjudicata. The learned Advocate for the respondent has then referred to the case of Karimi Banamali Padhano vs. Gulasu Lakhano and Ors., AIR 1977 Orissa 128. In the said case the principle of constructive res judicata had been discussed and it was observed that the principle of law is that the plaintiff has several grounds on which he can make his claim in a count of law he could put forth all the grounds on which he can make his claim. If he has omitted to do so he cannot be permitted to agitate in future. If he has omitted to do so he cannot be permitted to agitate in future. The object of the Explanation IV to section 11 of the Civil Procedure Code is to force the plaintiff or defendant to rely upon all the grounds of attack or defence which were open to him. There are, however, certain limitations in the application of this principle. If the ground taken in the subsequent suit is destructive of the one taken in the former suit a contention may be raised that though the party might have taken the plea in the former suit it cannot be said that he ought to have done so to attract the application of Explanation IV to section 11 of the Code. Where the matters are so dissimilar that their union might lead of confusion, the plea ought not to be taken. But where the ground taken in the subsequent suit can co-exist as an alternative case and the two claims are not mutually destructive, the bar of Explanation IV to section 11 of the Code will apply. 8. Mr. Shanti Bhusan Mukherjee, the learned Advocate for the appellant has tried to refute the submissions made by Mr. Tapas Midya, learned Advocate for the respondent and submits that there was no scope to take the ground of sub-letting in a suit for injunction and as such the case laws referred to by the learned Advocate for the respondent are not applicable to the instant case. 9. Thus, the position and determination of the present appeal mainly rests on the application of the principle of res judicata or constructive res judicata. section 11 and Explanation IV to that section of the Code of Civil Procedure reads as under:- "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. *** *** ****** Explanation IV. *** *** ****** Explanation IV. -Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." 10. It appears that the trial court found the proof of sub-letting but he had applied the principle of res judicata following the judgment passed earlier in Title Suit No.411/80 which was re-numbered as Title Suit No.95/84. The said suit, it may be reiterated here, was for injunction only. The first appellate court did not find any proof of sub-letting but concurred with the views of the trial court as regards the application of the principle of res judicata. The observation of the first appellate court in this regard is as follow:- "In my view there is no cogent and clear evidence on record for holding that the defendant sublet the suit premises to Abdul Mohammad. On the contrary, the licence for the meat shop standing in the name of the defendant himself, the plaintiffs failure in his evidence as P.W.1 to give the name of the person to whom the suit premises was sublet by the defendant and particularly, the evidence of P.W.2 disclosing that he found no other person in the suit premises except the defendant himself, all these facts and circumstances must lead to the irresistible conclusion that the plaintiff has totally failed to prove that the defendant sublet the suit premises. Hence, in this respect I find no ground for subletting the conclusion of the learned court below. It is already discussed that the learned Court below has held that the issue of subletting is barred by constructive res judicata. It creates a strong improbability for the plaintiff's case for holding that the defendant sublet the suit premises in view of the fact that the subletting has been alleged to have been made in the year 1981-82 as per evidence of P.W.1 and previous Suit No.95 was filed in the year 1984 by the present plaintiff against the defendant on the ground of ejectment from the self-same property, there was no case of subletting. In view of such facts and circumstances the plaintiffs case of subletting cannot be believed and that being the position the ultimate finding of the learned court below on that issue must be sustained. (Underlined for emphasis) 11. In view of such facts and circumstances the plaintiffs case of subletting cannot be believed and that being the position the ultimate finding of the learned court below on that issue must be sustained. (Underlined for emphasis) 11. Thus, it is clear from the above quoted observation of the first appellate court, particularly the underlined portion that although the first appellate court did not find the evidence of subletting the ultimate finding of the trial court was maintained. And the ultimate finding of the trial court for dismissing the suit on that score of subletting was the application of the principle of res judicata. It is also clear that the first appellate court had misdirected itself in taking the Title Suit N 0.95 of 1984 as a suit for ejectment. In fact that was the suit for injunction only. The trial court in applying the principle of res judicata and the principle of constructive res judicata in particular on the basis of the Title Suit No.95/84 had observed that the ground of subletting ought to have been taken by the plaintiff in the said Title Suit No.95 of 1984. And that view has been maintained in the decision of the first appellate court. 12. It appears from the plaint of Title Suit No.411 of 1980 re-numbered as Title Suit No.95/84 that the suit was for injunction simpliciter on the ground, as mentioned in paragraph 8 of that plaint, of the changing of nature and character of the suit property by constructing a brick wall inside the suit room dividing the suit room into two parts, eastern and western blocks and also by pulling down the C.I. sheets from the south east corner of the southern wall of the suit room and by raising the height of the floor without the consent of the landlord etc. There is no whisper of subletting. We cannot also conceive of the situation as to how it is necessary to mention the ground of subletting in a suit for injunction, for, it is not at all justifiable that the plaintiff may seek injunction against the defendant/tenant from subletting the suit premises. There is no whisper of subletting. We cannot also conceive of the situation as to how it is necessary to mention the ground of subletting in a suit for injunction, for, it is not at all justifiable that the plaintiff may seek injunction against the defendant/tenant from subletting the suit premises. It is the statutory embargo under the West Bengal Premises Tenancy Act, 1956 that the tenant is not permitted to sublet the suit premises under any circumstances without the prior permission of the landlord and such subletting without the permission of the landlord is a good ground for eviction. If the landlord would take the ground of subletting in Title Suit No.95/84, the nature and character of the suit itself must have been changed from a suit for injunction to a suit for eviction. Accordingly, it would have been destructive for the plaintiff/landlord to take the ground of subletting in a suit for injunction. 13. The Title Suit No.527/82 which was re-numbered as Title Suit No.3091 86 out of which the Title Appeal No.73/95 and the present appeal arose was for eviction of the tenant on the grounds of (1) subletting (2) personal-requirement (3) building and re-building and (4) addition and alteration of the suit premises made by the tenant. Besides those grounds the trial court had also taken the ground of default for non-payment of rent into consideration. All the grounds taken were decided against the plaintiff/landlord. 14. As regards sub-letting Kamala Kanta Das, plaintiff in T.S. No.309 of 1986 deposed in his examination-in-chief: "The defendant has sublet one room to a person who carries on a meatshop. He has sublet this in 1981/82." In his cross-examination the P.W.1 stated: "I have filed a document to show that excepting this defendant another person is carrying on business in the suit premises. ----------- Defendant had a meat selling licence but I do not know whether at present he has the same ------------ I do not know whether defendant is carrying on business therein for last forty years." 15. The plaintiff produced the P.W.2 who is a class IV employee to prove the municipal documents. P.W.2 admitted in his cross-examination that he was not authorised by the municipality to depose. The plaintiff produced the P.W.2 who is a class IV employee to prove the municipal documents. P.W.2 admitted in his cross-examination that he was not authorised by the municipality to depose. He admitted that he did not read and write English, nor was he attached to the assessment department and that the hand writing of the writer of the register was not known to him. However, Exhibit 5 which is the certified copy of the assessment register of 1988-89 was shown to him and he stated that there were two rooms in the suit holding one in the name of the defendant, Madan Das and the other in the name of Abdul Md. He further stated from the assessment register of 1993-94 that the name of the defendant was recorded in respect of both the suit rooms. The P.W.2 claimed himself to be a local person and he stated that except the defendant Madan Babu, he did not see any other person in the suit holding. Now to my utter dismay it appears that the Exhibit-5 is written in English and so also the certified copy of assessment register for other years. That being the position evidence of the P.W.2 so far the assessment registers are concerned, must be kept aside to consider the case of the plaintiff. But his evidence as a local person that he did not see any other person except the defendant in the suit holding has definitely got bearing with the case of the parties and positively against the story of subletting. 16. Then again, it appears from the list of the documents kept in the record of the trial court that Ext.5/b was taken into evidence as public document, although there is nothing as to how Ext. 5 was admitted into evidence. May be Ext. 5 was also admitted into evidence as public document. But since there appears no objection raised by the defendant as regards the admission of Ext.5 series into evidence and as there appears cross-examination on those documents those must be taken into consideration. 17. Specific case of the plaintiff, as quoted ante, that the defendant sublet one room in 1981-82 does not find support from any documentary evidence. And what is in Ext. 5 series is the story of contradiction. 17. Specific case of the plaintiff, as quoted ante, that the defendant sublet one room in 1981-82 does not find support from any documentary evidence. And what is in Ext. 5 series is the story of contradiction. The assessment register of 1988-89 (Ext.5), and not of 1981-82 which is the case of the plaintiff, stands to support the case of the plaintiff while the assessment register of 1993-94 stands to support the case of the defendant. 18. The P.W.2 brought the original assessment register of the municipality before the trial court. No assessment register of 1993-94 was exhibited before the trial court. But the plaintiff in examination-in-chief of the P.W.2 took the recorded position of the register of 1993-94 at his own peril. And this portion of the evidence taken at the instance of the plaintiff, which goes in favour of the defendant, must be taken into consideration. The P.W.2 of course stated in his examination-in-chief that the assessment register of 1993-94 was yet to be finalised. No other witness was examined by the plaintiff. 19. The trial court appears to have relied more on the evidence of the defendant who is D.W.1 in deciding the issue of subletting than on examining the aspects stated in the foregoing lines. The D.W. 1 stated in his evidence that he did not maintain any books of account of his meat shop and he did not act as a slaughter of the goat and that Abdul Md. is a mason. The trial court also appears to have relied on the submission of the learned Advocate for the plaintiff that as the brother of the defendant is a employee of the municipality, he got the opportunity to manipulate the documents. But there appears neither any document nor any evidence that the defendant got the municipal document manipulated. It cannot also be taken that as there is no books of account of the meat shop and as the defendant is not the slaughter of goat, he is not running the meat shop. The trial court again appears to have misdirected himself in not considering the evidence of the plaintiff in his cross- examination, as quoted ante, that the defendant had a meat selling licence. From all this, the only ineluctable conclusion is that the trial court erred in appreciation of evidence lawfully in deciding the issue of subletting. 20. The trial court again appears to have misdirected himself in not considering the evidence of the plaintiff in his cross- examination, as quoted ante, that the defendant had a meat selling licence. From all this, the only ineluctable conclusion is that the trial court erred in appreciation of evidence lawfully in deciding the issue of subletting. 20. Thus, to sum up we do not find any application of the principle of constructive res judicata in the instant case nor any evidence of subletting. 21. Accordingly, the appeal fails and is dismissed on contest. The judgment and decree passed by the lower courts are hereby affirmed. The suit is dismissed. 22. The parties are directed to bear their respective costs. Appeal dismissed.